Fortunately, protection is also provided for unregistered design, however, the law privileges those who decide to make public and certain their right by applying for registration, limiting protection for unregistered designs to:
Shorter duration: 3 years versus 25 years of registered design.
Nature of the copy: is conditioned to a reasonable proof that copying was intentional versus regardless of intentionality for registered design.
Proof of rights: requires proving prior disclosure versus exhibit of the registration certificate only.
In short, the owner of an unregistered design must be able to produce the following evidence:
- proof of the date and place of the first disclosure;
- proof that the alleged copying refers to the design as disclosed (including its main features and in particular those conferring it a “distinctive character”);
- evidence that the alleged copying parties could have been aware of the disclosure itself.
- evidence that the infringer has actually copied the protected design.
Therefore, if there is evidence that the design has been disclosed within 3 years and that the copying was intentional (with all the requirements above), protection can be sought.